CRIMINAL JUSTICE REVIEW 1999-2001Centre for Criminal Justice Studies, University of Leeds

http://www.leeds.ac.uk/law/ccjs/homepage.htm

©Dangerous Representations: Mugshots, Notoriety and Vengeance1

©Claire Valier 2002

These two boys are commonly described by the global communications industry as 'marked men', and as 'targets' who are 'dead men walking.'2 Convicted of the murder of a young child when they were aged ten, their release on licence was announced two weeks ago. There is no precedent for the release of such high-profile offenders, and they have been described as 'dead men walking' in two senses. Firstly, Robert Thompson and Jon Venables no longer officially exist because every record of their former lives has been destroyed, to be replaced by intricate false identities. For some commentators, this makes them sinister 'faceless killers' while others report with concern their terror of being unmasked, and discuss the difficulties of sustaining a clandestine existence. The 'Bulger killers' are also 'dead men walking' because they are believed to be at grave risk of vigilante attack. For the purposes of protection, the courts have made a lifetime anonymity order, which prohibits anyone under the jurisdiction of English law from discussing or publishing information which might make their new identities public knowledge. As stories of mobs hunting them down circulated across the globe, the News of the World's front-page headline dramatically announced, 'BULGER KILLER DEAD IN FOUR WEEKS', and described the anonymity order as 'fatally flawed.'3

Rather than seeing this dramatic case as an aberrational departure from the normal practices of contemporary penality, I see it as revelatory of a central element of the new punitiveness. This feature is the increasing prominence of notoriety as an integral part of punishment under the criminal law. To be notorious is to be well-known in respect of some bad or unfavourable quality or deed. In contemporary information societies, meanings of infamy are negotiated through a mediated knowledge in which global flows of images, ideas, and capital are reconstituting social life, politics and individual subjectivities in complex ways (Urry, 2000, Thompson 2000). Images have played a powerful part in the imagination of crime which mobilised the punitive shift. Two key dimensions of these visual practices are:

(i) The mass circulation of representations of infamous offenders. (ii) The battle over the public's right to know the identities of serious offenders released into the community.4

1 I would like to thank the British Academy and its panel of assessors for awarding me a travel grant in respect of attendance at this conference, as well as a research grant for my project 'Notoriety and Punishment in Contemporary Culture.' The author asserts her intellectual copyright over this paper. A more polished and detailed version of it will be published in the August 2002 edition of Theoretical Criminology. This paper was presented at the Law and Society Association Annual Meeting, 2001, Budapest.2 These two poetic appellations do not emanate from the tabloids, but from a broadsheet: 'While liberals worry that the release will make the youths dead men walking, hunted by vengeful attackers, debate still rages…' ( The Times, 23.6.2001 'Touch and Go: The Start of a High-Risk Experiment in Rehabilitation'). The headline 'MARKED MEN' is from the Sunday Times (24.6.2001, p.11).3 News of the World, 24.6.2001, p.6 'Can Bulger killers' secret be kept from their future wives, children, bosses…')

4 Campaigns and provisions to make the identity and whereabouts of obscure criminals released after serving sentences for serious offences a matter of public knowledge include Megan's Laws (USA), Sarah's Law (UK), and the Voto-Tedesco Community Notification Law (NJ, USA), which would establish notification measures when murderers are released.

The case of Thompson and Venables involves both of these elements: villificatory images of 'evil freaks' and demands for a right to know about 'faceless killers.' Today, notorious criminals increasingly lose the power to control use of their own image, as their names, faces and stories become lucrative commodities. In a consumerist culture, villificatory representations of criminals become a saleable commodity, as trade for a powerful media industry, and a source of political profit. Notorious criminals have to wage a battle with the mass media to reassert and defend their image against damage to both their reputation and their life and limb. Damage to reputation through negative or vituperous representations is of great concern when public opinion is referenced in decisions about tariff-setting.5 Representations which elicit physical attack and even murderous vigilantism are a chilling reminder that distinctions between retribution and revenge are being redrawn (Sarat, 1994). The 'just deserts' calculus of proportionality here becomes a threat levelled against both individual offenders and the rule of law itself. The formula is: if retribution is insufficient in our eyes, we 'the public' will exact our revenge. In this context, the legal regulation of dangerous representations becomes a site of contestation.

My research on notoriety and punishment challenges the continuing salience of the concepts of 'moral panic' and 'populist punitiveness' (Cohen 1973, Hall et al 1978, Bottoms 1995, Windlesham, 1998). These theories inadequately address the dynamism of the commodification of everyday life, and date from the time of a vastly different media environment. Commodification is the process through which things are transformed into articles of commerce that can be bought and sold for profit by maximising their exchange value. In late modern commodification, global flows of capital are networked with those of images and ideas. My theoretical framework also departs markedly from Foucauldian approaches to punishment and social regulation. Scholarship on consumer culture attributes considerable significance to the role of fantasy. In addition, cultural critics see fantasy as a powerful force in collective political life (Rose, 1995). Questions of fantasy are of course not prominent within Foucauldian work written from the perspectives of governmentality and normalisation. It seems that vicarious pleasure derived from the encounter with representations of crime and punishment combines with the frisson of fear, as representations increasingly tend to depict a universally threatening universe (Presdee, 2000, Reiner et al 2000). The process by which crime and punishment becomes a lucrative entertainment commodity is a complex one, and Acland tells us:

'Sensational crimes are distinguished by the way in which they rework the presumed 'informational' function of the news. Coinciding with the move from event to sensational crime- to murder as entertainment- is an entire industry of cultural production' (Acland, 1995: 47).

It is my belief that jurisprudence and criminological theory must interrogate the economy of cultural production and its concomitant legal regulation. Central to this task, scholars must recognise the power of the image, and engage with the politics of representation in contemporary societies.

I will now move on to a brief reading of visual practices, notoriety and punishment as they pertain to the Bulger case. Robert Thompson and Jon Venables were described several months ago in the High Court as 'uniquely notorious.' In a recent documentary, a journalist described their crime as a 'made-for-TV-murder.' 6

From the outset, the meaning of the Bulger killing was shaped through a well-known and emotive image taken from CCTV footage, which showed the abduction of the victim from a busy shopping mall. This haunting image, shown on the criminal detection programme Crimewatch UK and published often in the press, was widely described as threatening and harrowing, as an image before which viewers felt powerless and fearful. A considerable number of eloquent and engaging analyses of this image and the response to it have been published, among which Alison Young's (1996) contribution stands out. During the trial, which has been described as a spectacle and as a national event, the two young defendants were known as Child A and Child B. However, at the culmination of the trial, Morland J took the controversial decision to lift reporting restrictions thus permitting the 'Bulger killers' to be identified. Their names and school-photo images were splashed across newspapers and television screens, accompanied by villificatory headlines which identified the boys as 'monsters' and 'evil freaks.'7

5 I analyse damage to reputation through villificatory representations of Ian Brady and Myra Hindley, who have both sought censure of newspapers by the PCC and the courts.6 BBC2 'Eyes of the Detective: The Murder of James Bulger.'

7 On the press coverage of the Bulger case, and its part in the punitive shift in juvenile justice see Franklin and Petley (1996), Kember (1995), Warner (1994), Hay (1996), Mann and Roseneil (1994), James and Jenks (1996), Fionda (1998), Gelsthorpe and

Today, I will restrict my comments to the significance of the press injunction made for Thompson and Venables earlier this year. Despite the dictum 'there is no confidence in iniquity', this anonymity order for was made under the domestic law of confidence (the closest thing that Britain has to privacy law). 8 The question, as understood by the court, was largely one of balancing the freedom of expression (and the public's right to know) against the right to life protected under article 3. Dame Elizabeth Butler-Sloss stated that sections of the media were inciting people to wreak revenge on Thompson and Venables. Her reasoning in this respect was based on examination of press coverage, which the court took as evidence that:

'Some sections of the press supported this feeling of revulsion and hatred to the degree of encouraging the public to deny anonymity to the claimants. The inevitable conclusion was that sections of the press would support, and might even initiate, efforts to find the claimants and to expose their identity and their addresses in their newspapers.'

The gagging order is an order contra mundum, imposed openly against everyone. Despite its literal meaning of 'against the world at large', the contra mundum order can only be enforced within the jurisdiction of the law of England and Wales. This limitation to its scope means that news organizations outside this domain will be free to publish the information. The Sunday Express used the headline 'We'll show Bulger faces' to tell readers that nothing could be done to stop British tourists from bringing magazines back which would 'slap a £50,000 price on their heads.'9 Furthermore, the technological revolution in the communications industry means that the reporting injunction may be unenforceable. 10 The Attorney General wrote to internet service providers telling them that they were bound by the injunction. There are James Bulger sites ran from Germany, the USA, Australia and New Zealand with online petitions and newsboards through which contributors from all over the world make a range of violent threats.11

In the Bulger case, the demand for the right to know these identities and the wish to inflict vengeful attacks privilege the figure of the dead child's mother. This prominent representation of the Bulger family in the world's mass media indexes a battle over locus standii which provides lucrative discourse for the communications industry and the politicians. Politicians and the mass media regularly exploit the victim's experience such that Garland has recently written, 'the sanctified persona of the suffering victim has become a valued commodity in the circuits of political and media exchange' (Garland, 2001: 143). The voice and face of Denise Fergus was widely employed by the mass media to authorise vengefulness and vigilance. She made a statement calling on future girlfriends and colleagues of her son's killers to photograph them at the first opportunity to ensure that their new identities are revealed. She was widely reported as saying 'I know that no matter where they are, someone out there is waiting. There will be no stone unturned', and 'I'm urging people to look out for an 18-year-old moving into the area. If it's Thompson or Venables, I'd say "do what you can to get them out because they're still dangerous".'

Relations between vigilance and vengeance in the Bulger case merit critical scrutniny. The News of the World warned, 'we respect the injunction, but we will closely follow this evil pair… we shall do all in our power to watch over them.' Representations of vigilance in this case demonstrate a coupling of vengeful punishment and self-defence. They elide together:

anticipatory fearful discourses of self-protection past-orientated discourses of detection (Valier, 2001) and vengeance.

Morris (1999) and Bourquin (1994).8 Venables v News Group Newspapers Ltd [2001] 1 All ER 908. In the Mary Bell case, an order was made for the protection of her infant daughter rather than for Mary herself (X County Council v A [1985] 1 All ER 53).9 This frontpage report informed readers that magazines like Spain's Interviou, Germany's Stern and Bild, Italy's Espresso, Gente and Oggi and Japan's Focus were offering large sums of money for photographs of Thompson and Venables (24.6.2001 'We'll show Bulger faces').10 See Hamelink (2000), Chapter 6, and Akdeniz, Walker and Wall (2000).

11 http://www.petitiononline.com/Jamie91/petition.html is the address of a petition posted by 'Marie Gloria, Florida, USA' which demands for the release and anonymity rulings to be undone. Messages posted by signatories include the following: 'Attack these 2 monsters as soon as their photo is released to the public' (USA), 'Where are they ? Tell Me! I have always wanted to track down and kill a baby murderer' (UK), 'Who cares if they were rehabilitated, kill em anyway… I hope you hunt them down and rape them' (US). Threats are also made against Thompson and Venables family and lawyers as well as Lord Woolf.

This watchfulness seeks to make Thompson and Venables 'prisoners of their past.' 12 The Foucauldian study of punishment does not provide appropriate conceptual tools by which the weight of the past can be theorised, as I argue in the next issue of Theoretical Criminology (Valier 2001). I submit that in order for scholars to comprehend and elucidate the full range of representations, practices and institutions that make up the contemporary crime complex, the imbrication of past, present and future temporalities must be recognised and addressed.

The urge and imperative to look out for the criminal is both a pleasurable and fearful one. In his fascinating book Cultural Criminology and the Carnival of Crime, Mike Presdee draws our attention to the pleasures of voyeurism:

'to be involved in some way in the act of transgression as a voyeur is pleasure enough. To watch, to be there yet absent, is enough…A global multimedia industry enables us to consume many of these forbidden pleasures in the privacy of our own homes… others do our crime for us and the multimedia deliver the pleasures to us via the Internet and a growing "reality" television' (Presdee, 2000: 30).

However, I would also like to point out that there is no safe viewing position from which one can maintain distance from dangerous representations (Valier, 2000). Questions of commodification always include those of costs: costs to the subject as well as to the social order and to the rule of law.

ReferencesAcland, C.R. (1995) Youth, Murder, Spectacle: The Cultural Politics of "Youth in Crisis" Boulder: Westview.Akdeniz, Y., Walker, C. and Wall, D. (eds.), (2000) The Internet, Law and Society London: Longman.Bottoms, A. (1995) 'The philosophy and politics of punishment and sentencing', in Clarkson, C. and Morgan, R. (eds.), The Politics of Sentencing Reform Oxford: Clarendon.Bourquin (1994) 'The James Bulger Case Through European Eyes' Social Work in EuropeCohen, S. (1973) Folk Devils and Moral Panics St Albans: Paladin.Fionda, J. (1998) 'R v Secretary of State for the Home Department ex parte Venables and Thompson: The age of innocence?- the concept of childhood in the punishment of young offenders' Child and Family Law Quarterly 10 (1): 77-87.Franklin, B. and Petley, J. (1996) 'Killing the age of innocence: newspaper reporting of the death of James Bulger' in Pilcher and Wagg (eds.) Thatcher's Children: Politics, Childhood and Society in the 1980s and 1990s London: Falmer.Garland, D. (2001) The Culture of Control: Crime and Social Order in Contemporary Society Oxford: Oxford University Press.Gelsthorpe, L. and Morris, A. (1999) 'Much ado about nothing- a critical comment on key provisions relating to children in the Crime and Disorder Act' Child and Family Law Quarterly 11 (3): 209-221.Hall, S., Critcher, C., Jefferson, T., Clarke, T., and Roberts, J., (1978) Policing the Crisis: Mugging, the State and Law and Order London: Macmillan.Hamelink, C.J. (2000) The Ethics of Cyberspace London: Sage.Hay, C. (1995) 'Mobilisation Through Interpellation: James Bulger, Juvenile Crime and the Construction of a Moral Panic' Social & Legal Studies 4 (2): 197-223.James, A. and Jenks, C. (1996) 'Public Perceptions of Childhood Criminality' British Journal of Sociology 47 (2)Kember, S. (1995) 'Surveillance, Technology and Crime: the James Bulger Case' in Lister, M. (ed,), The Photographic Image in Digital Culture London: Routledge.Mann, K. and Roseneil, S. (1994) 'Some Mothers Do Ave Em: Backlash and the Gender Politics of the Underclass Debate' Journal of Gender Studies 3: 317-331.Presdee, M. (2000) Cultural Criminology and the Carnival of Crime London: Routledge.Rose, J. (1995) 'Margaret Thatcher and Ruth Ellis' in Why War ? Psychoanalysis, Politics and the Return to Klein Oxford: Blackwell. Sarat, A. 'Vengeance, Victims and the Identities of Law' Social & Legal Studies 6 (2): 163-189.Thompson, J. (2000) Political Scandal: Power and Visibility in the Information Age Cambridge: Polity.Urry, J. (2000) Sociology Beyond Societies: Mobilities for the Twenty-First Century London: Routledge.Valier, C. (2000) 'Looking daggers: a psychoanalytic reading of the scene of punishment' Punishment & SocietyValier, C. (2001) 'Criminal detection and the weight of the past: critical notes on Foucault, preventative control and subjectivity' Theoretical CriminologyWarner, M. (1994) Making Monsters London: Vintage.

12 This is the title of BBC's Panorama programme of 1.7.2001.

Windlesham, Lord (1998) Politics, Punishment, and Populism Oxford & New York: Oxford University Press.Young A (1996) Imagining Crime: Textual Outlaws and Criminal Conversations London: Sage, Chapter 5.